Forwarded message: [IPN] Corp copyright holders ask ABA to support 95 year work for hire copyright term

[Alan G Isaac <aisaac@xxxxxxxxxxxx>]

For pkt members interested in intellectual property rights
and the new attempts to use these to redistribute wealth
to the wealthy within the US.

Cheers,
Alan Isaac

------ Forwarded message ------
From: James Love <james.love@xxxxxxxxxx>
Date: Tue, 9 Apr 2002 14:42:00 -0400
Subject: [IPN] Corp copyright holders ask ABA to support 95 year work for hire copyright term
To: info-policy-notes@xxxxxxxxxxxxxxxxxxx

The American Bar Association Section on Intellectual Property Law is trying
to get the ABA to sign-off on an Amicus Brief, supporting the
constitutionality of the extension of the copyright term, in Eldred v.
Ashcroft.  This is the 11th time in 40 years the copyright term has been
extended, in this case "work for hire" copyrights, held by corporations such
as Disney (the firm that lobbied the most for the extension) are extended to
95 years.   Eldred, represented by Larry Lessig, is asking the court to
declare the extension unconstitutional, because it makes a mockery of the
Constitutional provision that copyright be available for "limited times."

The group pushing for this within the ABA include a number of persons who
represent the motion picture, music and publishing industries, including
Judy Saffer (assistant general counsel, BMI), Donna Gies (West Publishing),
Mary L. Kevlin (Cowan, Liebowitz & Latman, a firm that represents Columbia
Pictures, Universal Studios, Random House, BMG Entertainment, RCA Records,
Sony Music and others), Hayden Gregory (legislative consultant, former chief
counsel of the House Judiciary subcommittee on intellectual property), Mike
Jakes (Finnegan, Henderson, Farabow, Garrett & Dunner, a firm that
represents Walt Disney), Cynthia Kernick (Reed Smith, represented eight
movie studios in the ICraveTV suit) and Gale R. (Pete) Peterson  (head of
the intellectual property law department of the San Antonio firm of Cox &
Smith).

 In the ABA IP section notice about the case quote Mort Goldberg (see his
bio here: http://www.cll.com/attorneys/bio.cfm?attyid=46)  as saying"


    "The case could present a field day for
    those who have an anti-IP sentiment--
    those who say information wants to be free,
    less protection is necessarily better, the public
    domain promotes the progress of science and
    useful arts better than IP, and when technology
    advances, IP rights must be cut back."

Goldberg apparently is alarmed by all of those things.   But the more basic
issue is how can anyone justify a 95 year work-for-hire copyright term?
There certainly is no economic theory or moral justification for this.   ABA
members should intervene to stop the ABA from using its member's names to
protect a handful of firms that are lobbying for the 95 year copyright term.
Here is the ABA IP section notice of the proposed brief.

 http://www.abanet.org/intelprop/apr02chair.html


ABA SECTION OF INTELLECTUAL PROPERTY LAW

CHAIR=S BULLETIN

Vol. 6 No. 8

APRIL 2002

>From the Chair

Section Prepares To Submit Amicus Brief To Supreme Court On
Constitutionality Of Copyright Law

Charles P. Baker

Section Chair, 2001-02

When the Supreme Court on February 25 granted certiorari to hear a case
involving the constitutionality of a recent copyright statute, many of us
were surprised. Talking with copyright experts in our Section, however, it
became plain that this case will probably be a major one for copyrights as
well as other forms of intellectual property.

As Past Section Chair Mort Goldberg of New York said,  This is one of the
most important copyright cases the Court has decided to hear in many
decades-- indeed, it may rank with cases like Graham v. John Deere, Kewanee
Oil v. Bicron Corp., Diamond v. Chakrabarty, and The Trademark Cases [1879].
The case could present a field day for those who have an anti-IP sentiment--
those who say information wants to be free, less protection is necessarily
better, the public domain promotes the progress of science and useful arts
better than IP, and when technology advances, IP rights must be cut back.@

The Section immediately began the process of obtaining the two ABA approvals
required for submission of an amicus brief on behalf of the ABA. ABA policy
approval is required, and approval by ABA Standing Committee on Amicus
Curiae Briefs is required. The schedule was tight-- only a few weeks to
obtain the approvals in order to have enough time to prepare the brief.

With guidance from Judy Saffer of New York, who chairs the Section's
Copyright Division, Donna Gies of Eagan, Minnesota, and her Copyright
Legislation Committee, and Mary Kevlin of New York, and her Authors
Committee, prepared reports and resolutions in about ten days for voting on
by their respective committees. As this column is being written, those
reports and votes are being sent to the Section's Council, which will meet
by telephone conference to consider and adopt a position. Our Section
Director Betsi Roach and Legislative Consultant Hayden Gregory will then
have a few days to prepare a submission to the ABA Executive Committee,
which can adopt ABA policy when the Board of Governors and the House of
Delegates are not available. We trust the Executive Committee will agree
that the Section's position, supported by the reports of Donna and Mary's
committees, is sound, and it will become ABA policy.

Simultaneously, the Section's own Amicus Briefs Committee, chaired by Mike
Jakes of Washington, DC, and Cynthia Kernick of Pittsburgh, under the
leadership of Pete Peterson of San Antonio, chair of the Section's
Litigation Division, are preparing the detailed submission required for
approval by the ABA Amicus Committee.

Turning to the substance of the case, Eldred v. Ashcroft, 239 F.3d 373 (D.C.
Cir. 2001), upheld the Sonny Bono Copyright Term Extension Act, which the
Section successfully urged Congress to adopt pursuant to a Section
resolution based on the Report of Committee 301B Copyright Legislation. That
legislation extended the term of copyright protection from 50 years after
death of an author to 70 years, or from 75 years to 95 years for corporate
copyright holders. Congress based the extension on its power under the
Constitution to secure for "limited times" exclusive property rights for
inventors and creators of original works. The D.C. Circuit Court of Appeals
rejected a contention that the extended period was longer than needed "to
promote the progress of science" and the arts. The questions on which
certiorari was granted are,

1. Did the D.C. Circuit err in holding that Congress has the power under the
Copyright Clause to extend retrospectively the term of existing copyrights?

2. Is a law that extends the term of existing and future copyrights
"categorically immune from challenge under the First Amendment"?

The real world issues at stake are the many works that are still used in a
consistent way by their owners and are important sources of revenue. These
would enter the public domain 20 years earlier if copyright extension laws
are declared unconstitutional. People like Eric Eldred, the plaintiff, whose
website publishes public domain works, object to such extensions as being
retroactive. Those who support the defendant contend that without copyright
protection, people could not afford to be creative, and this extension,
which brings U.S. law closer to the law in Europe, does not mean that
extensions will go on forever.



--------------------
James Love, mailto:james.love@xxxxxxxxxx, http://www.cptech.org
voice +1.202.387.8030, mobile +1.202.361.3040, fax +1.202.234.5176




--------------------
James Love, mailto:james.love@xxxxxxxxxx, http://www.cptech.org
voice +1.202.387.8030, mobile +1.202.361.3040, fax +1.202.234.5176

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